Slip Op. 07-96 UNITED STATES COURT OF I NTERNATIONAL

TRADE

____________________________________ : LOUI S DREYFUS CITRUS IN C., : : Plaintiff, : : Befor

e: WALLACH, J udge v. : Court No.: 06-00122 : UNI TED STATE S, : PUBLIC V ERSION : Defend ant, : and : : FLOR IDA C ITRU S M UTU AL et al. , : : Defend ant-I nterven ors. :

____________________________________ : [Plaintiff’s Rule 56.2 Motion for Judgment Upon the Agency Record is DENIED and the Agency ’s Determination is AFFI RMED.] Dated: June 19, 2007 Dew ey Bal lan ti ne LLP , ( Kevin M. Dempsey , David A. Bentley and Christophe F. Guibert de Bruet ) for Plaintiff Louis Drey fus Citrus Inc. Peter D. Keisler , Assistan t Attorne y G eneral ; David M. Cohen , Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice ( Michael J. Dierberg ); and Mildred E. Steward , Office of Chief Counsel for I mport Administration, U.S. Department of Commerce, of Counsel, f

or Defe ndant Uni ted State s. Barnes, Richardson & Colburn , ( Matthew T . McGra th , Stephen W. Brophy and James B. Doran ) for Defendant-I

ntervenors Florida Citrus Mutual, A. Duda & Sons, I nc. (d/b/a Citrus Belle), Citrus World, Inc., and Southern Gardens Citrus Processing Corporation (d/b/a Southern Gardens).2 OPINION Wallach, Judge: I Introduction This case comes before the court on a Motion for Judgment Upon the Agency Record pursuant to USCI T Rule 56.2brough t by Louis Drey fus Citrus Inc . (“Plain

tiff” or “Lou is Dreyf us”). Plaintiff claims it has suffered injury in fact from an order imposing antidumping duties (“AD”) on frozen concentrated or ange juice for further manuf acture (“FCOJM”) produced and export

ed by Plaintiff . Complaint

¶ 7; Antidumping Duty Orde r: Certain Orange Juice from Brazil , 71 Fed. Reg. 12,183 (March 9, 2006) (“ AD Order ”). Plaintiff challenges, inter ali a , (1) the authority of the United States De partment of Commerce (“Commerce” or “ the Department”) to initiate an investigation prior to the revocation of an order c overing identical merchandise, (2) the producer-specific scope of the inve stigation, and (3) aspects of Commerce’s F inal Determination in Notice of Final Determination of Sales at L ess Than Fair Value and Affirma tive Fina l Determ ination of Critical C ircumsta

nces: Cer tain Ora nge Juice from Br azil , 71 Fed. Reg. 2,183 (January

13, 2006) (“ Final Determination ”), as amended by 71 Fed. Reg. 8,841 (February 21, 2006) (“ Amended Final Determination ”). Memorandum of Law in Support of Plaintiff’s Rule 56.2 Motion for Judgment Upon the Agency Record (“Plaintiff’s Motion”) at 2- 3; Notice of

Initi ation of A

ntidumping

Duty Inve stigatio

n: Certai n Orang e Juice Fr

om Brazil , 70 Fed. Reg. 7,233 (Februar y 11, 2005) (“ Initiation of OJ AD Inv. ”). For the reasons set forth herein, Plaintiff’s Motion is DENI ED.1 FCOJ and FCOJM are identical merchandise. See, e .g. , Froze n Con centra ted Or ange

Juice from

Brazil , USITC Pub. 3760, Inv. Nos. 731- TA-326 , I-11 (March 2005) (“ Second FCOJ Sunset Review ”). 3 II Background Plaintiff is an importer of frozen concentrated orang e juice (“FCOJ”) 1 and the parent

com pan y of C oin bra -Fr ute sp, S.A . (“ Coin

bra -Fr ute sp” ), a Bra zili an p rod

uce r of FCO J. Complaint ¶ 10. On March 18, 2004, the Unite d States Cus toms and B order Pr otection (“CBP” or “Customs”) issued a Notice of Action concerning an entry made

by Coinbra-Fr

utesp on November 17, 2003 in which it determined that exports of orange juice ma nufactured by Coinbra-Frutesp were subject to the “all others” rate under a 1987 order on frozen conc entrated orang e juice f

rom Bra zil. Le tter from Christoph er Dunn, Willkie Fa rr & Ga llaghe r LL P to Donald L . Evans, Se c’y

of Commer

ce, U.S. D ep’t of Commerce ( August 4 , 2004) (“LDCI

CCR Request”) at 4-5, Confidential Record (“C.R.”) at 5-6 (re quest for changed circumstance s review). Customs also required that deposits be made on entries until Commerce confir med Coinbra-Frutesp’s exclusion from the order in a chang ed circumstances review. Id. at 5, C.R. at 6; see also Antidumpin

g Duty Order; Frozen Conc entrate d Orang e Juice Fr om Brazil , 52 Fed. Reg. 16,426 (May

5, 1987) (“ 1987 FCOJ AD Order ”). In Au gust 200 4, Lou

is Drey fus requ ested a c hange d circum stances

review w herein Plaintiff stated that “Louis Drey fus, through its virtually wholly -owned subsidiaries, is the successor in interest to both Frutesp and Frutropic,” both c ompanies that had previously be en revoked from the 1987 FCOJ AD Order . LDCI CCR Request

5-6, C.R. at 6-7. The successor-ininterest relation ship betwe en Plaintif f and Coin

bra-Fr utesp wa s outlined

by Pl aintiff a s follows.4

In 19 88, Frut

ropic S.A . (“Fru

tropic” ) was pur

chased b y Co mércio e

Indú strias B rasileir

as Coinbra S.A. (“Coinbra”), a wholly -owned subsidiary of

Louis Drey

fus. Id. at 3, C.R. a

t 4 . In October of 1992, Frutropic ceased to e xist as a legal entity when it wa s formally dissolved. L etter from Christopher Dunn, Willkie Farr & Gallaghe r LL P to Carlos Gutierrez, Sec’y of Commerc e, U.S. Dep’t of Commerce (March 25, 2005) (“L DCI Additional I

nfo. Letter”) a

t 1, C.R. at 42. On April 7, 19 93, Frut

ropic not ified Comme

rce tha t the comp any

had bee n incorporated in

to Coinbra and that its named had changed to Coinbra or F rutropic/COINBRA. LDCI CCR Request

at 3-4, C.R. 4-5. Frutropic was at the time of purchase subject to the 1987 FCOJ AD Order from which it was revoked in 1994 under the name Frutropic/COI NBRA. Id ; see also Frozen Concentrated Orange Juice From B razil; Final Results of Antidumping Duty Administrative Review and Revocation of Order in Part , 59 Fed. Reg. 53,137 (October 21, 1994) (“ 1994 FCOJ Final Re sults ”). Coope

rcitrus I ndustria l Frutes p, S.A. (“Frutesp ”) was p urchase d by

Plaintiff in 1993 after which “the assets, manage ment and employee s of Frutesp were transferr ed to the control of Louis Drey

fus and subsumed by it.” LDCI CCR Request

at 6, C.R. at 7. The 1987 AD order for Frutesp had alrea dy been re

voked in 1991. Id. at 2, C.R. a t 3; Frozen Concentrated Orang e Juice Fr

om Brazil ; Final Re sults and T erminati on in Part o f Antidump ing Duty Administrative Review; Revocation in Part of the Antidumping Duty Order , 56 Fed. Reg. 52,510 (October 21, 1991) (“ 1991 FCOJ F inal Resul ts ”). In 1994 the name of the merged company

was changed to Coinbra-Frutesp. LDCI CCR Request

at 6, C.R. at 7. As a result of the outlined transactions, by 1994, L

ouis Dreyfus ha

d acquired all assets of both Frutesp and Frutropic , and since the revocation of the antidumping duty order on Frutropic/COI

NBRA, has exported FCOJ to the United States exclusively under the name Coinbra-Frutesp. Id. at 4, C.R. at 5.5

Prior to the commencement of Commerce’s investigation into Certain Orange Juice from Brazil, the 1987 order on FCOJ underwent a sunset review. Initiation of Five-Year (“Sunset”) Reviews , 69 Fed. Reg. 17,129 (Dep’t of Commerce April 1, 2004) ; Froze n Con centra ted Or ange Juice From Brazil , 69 Fed. Reg. 17,230 (U.S. I nt’l Trade Comm’n April 1, 2004) (“ Initiation of FCOJ Sunset Review ”). In November 2 004 inter ested domestic pa

rties subm

itted a le tter to Commerce withdrawing any further interest in the 1987 order due to “its lack of any remaining remedial effect.” Letter from Matthew T. McG rath et al. , Barne s, Richar dson & Col

burn to Donald L. Evans, Sec’y

of Commerce, U.S. Dep’t of Commerce (Dece mber 27, 2004) (“Petition”) at 3, C.R. at 13. The interested domestic parties considered the 1987 orde r to have “small injury-mitigating

effect” because only

exporters Citrovita Agro Industrial, L tda (“Citrovita”) and Branco Peres Citrus wer e still known to be covered by the order. Id. at 4, C.R. at 14. In addition, Citrovita was allege dly evading the order through tolling arrang ements with a party excluded from the or der, rendering the order la rgely ineffective. Letter from Matthew T. McGrath et al. , Barne s, Richar dson & Col

burn to Donald L . Evans, Se c’y of Commer

ce, U.S. Dep’t of Commerce

(January 6, 2005) ( “Petitione

rs’ Response to Req

uest for Add’l I nfo. in Support of Petition”) at 14, C.R. at 20. At the time of the sunset review most major producers and/or exporters o f FCOJM had either b een revoked or excluded fr om the ord

er and a s a consequence were outside the purview of the order. Petitionat 3, C.R. at 13. Moreover, the 1987 order did not cover pasteurized single-streng th orange juice not-from-conce ntrate (“NFC”), which was a new product that had only been imported into the U.S. market subsequent to the issuance of the 1987 order due to new and more c ost-efficient means of transporting the merchandise. Id ; see also Certain Orange Juice from

Brazil , USITC Pub. 3838, Inv. Nos. 731-6

TA-1089 (March 2006) (“ Final ITC I njury Deter

mination ”) at IV-1. On Apr il 13, 2005, Commerce revoked the 1987 order in its entirety. Revocation of Antidumping Duty Order: Frozen Concentra

ted Oran ge Juice from Br azil , 70 Fed. Reg. 19,416 (April 13, 2005) (“ FCOJ Revocation ”). On December 27, 2004, Florida Citrus Mutual, A. Duda & Sons, I nc. (d/b/a Citrus Belle), Citrus World , Inc ., and Sout hern Ga rden Citr us Proces sing Cor

poration (d/b/a Sou

thern Ga rdens) (collectively “Defendant-Inte rvenors”), domestic producers of orang e juice, filed an antidumping duty petition with Commerce alleging that imports of FCOJM and NFC from Brazil were being sold in the

United Sta

tes at les s than fa

ir value (“L TFV”), materia

lly i njuring the domes tic industry. Defenda

nt’s Response to Plaintiff’s Motion for Judgment Upon the Agency Record (“Defen dant’ s Mot ion”) at 3. P etit ioner s requ ested that r econs titu ted or ange ju ice, fr ozen orange juice for retail (“FCOJR”) and FCOJM produced by companies still subject to the old order be excluded from the scope of the investigation. Petition at 42-43, C.R. at 15-16 . As a result of the petit ion, Comm erce, o n Febru ary 11, 20 05, i niti ated a LTF V inve stigat ion o n Cert ain Or ange Juice from Brazil. Initiation of OJ AD Inv. , 70 Fed. Reg. at 7,234. Commerce cra fted the scope of the investigation specifically to not overlap with the 1987 FCOJ AD Order and therefore included all oran ge juic e not-fr

om-conc entrate , a class

of merchandise n

ot previo usly subject to an order and FCOJM produced and/or exported only by Cargill Citrus Limitada, Citrosuco Paulista S.A., Frutropic S.A., Montecitrus Industria e Comerc io Limitada, and Sucocitrico Cutrale S.A. (Cutrale), all of whom had been excluded or revoked f rom the old order

. Id. at 7,234 . Commerc e stated

that it had

also comme

nced a c hange d circum stances

review t o determine whether Frutesp and Fr utropic, trading under the name of Coinbra-Frutesp, would be7

subject to the investigation. Id. In its initiation notice Commerce stated that “should the Department find L

ouis Drey fus or COI

NBRA-F rutesp to

be the suc cessor- in-inter est to [Fru

tesp and Fruitropic], the successor company will be included as part of this proceeding.” Id. On March 18, 2005, Louis Drey fus withdrew its request for a change d circumstances review and explained in a letter to Commerce on April 4, 2005, that for purposes of the new investigation Coinbra-Frutesp could not be considered the suc cessor-in-interest to either Frutropic or Frutesp. L etter from Christopher Dunn, Willkie Farr & Gallag her LL P to Carlos Gutierrez, Sec’y

of Commerce, U.S. Dep’t of Commerce (March 18, 2005) (“LDCI Withdrawal of CCR Resqu

est”) a t 1-2, Plai ntiff’s A ppendix at T ab J; Lette

r from Chr

istopher Dunn, Willki e Farr & Gallag her L LP to Ca rlos Gutie rrez, Sec ’y

of Commer

ce, U.S. D ep’t of Commerce ( April 4, 2005) (“Scope Comments Letter”) 9-10, C.R. at 59-60. Louis Dreyfus claimed that CoinbraFrutesp’s relationship to Frutropic and Frutesp did not meet Commerc e’s articulated standards by which it e valuate s whethe

r an enti ty is a succe ssor-in- interest

to an expor

ter and t herefore could not lawfully be included within the scope of the investigation. Scope Comments Letter a t 9-10, C.R. at 59-60. On April 13, 2005, Commerce issued a notice of rescission of the chang ed circumstances review. Notice of Rescission of Changed Circumstances Antidumping Duty Administrative Review: Frozen Conc entrate d Orang e Juice fr om Brazil , 70 Fed. Reg. 19,417 (April 13, 2005) (“ Notice of Rescission ”). Despite the rescission, Commerce’s procee ded with its successor-ininterest determination as pertaining to the new investiga tion. See, e .g. , Final Determination , 71 Fed. Reg . at 2,184 . Commerc e issued a final determinat

ion on Janua

ry 13, 2006, i

n which it deemed C oinbra- Frutesp

the succ essor-in-intere st to Frut ropic an d, conse quently, that its8

producti on and export of FCO JM fell withi n the scop e of Comme

rce’s a ntidumping

duty investigation and within the purview of the resulting AD orde r on Certain Orange Juice from Brazil. Id. at 2,183; AD Order , 71 Fed. Reg. 12,183. On March 9, 2006, Commerce published the new antidumping duty order on Certain Orange Juice from B razil. AD Order , 71 Fed . Reg. 12,183. Plaintiff timely commenced this action under 19 U.S.C. § 1516a(a)(2)(A)(i)(I I). Complaint ¶ 5. The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Oral argument wa s held on April 18, 2007. III Standard of Review It is incumbent upon this court to sustain “any determination, finding, or conclusion” by Commerce

unless it is

“unsupported by

substantia

l evidenc e on the r

ecord, o r otherw ise not in accordance with law.” 19 U.S.C. § 1 516a(b) (1)(B) (i) ; see also Corus Staal BV v. United States , 395 F.3d 1 343, 1346 (

Fed. Cir . 2005). Su

bstantial evidenc e is “such releva

nt eviden ce as a reasonable mind might accept as adequa te to support a conclusion.” Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). The sufficiency of the evidence is determined by “c onsidering the record as a whole, including evidence that supports as well as evidence that ‘fairly

detracts from the substantiality of the evidence.’” Huaiyin Fore ign Trade Corp. v. United States , 322 F .3d 13 69, 13 74 (Fed . Cir . 2003 ) (cit ing Atl. Sugar, Ltd. v. United States , 744 F.2d 1556, 1562 (Fed. Cir. 1984)). In de ciding w

hether t he age ncy ’s statutory

interpre tation an d applica tion was ma

de in accordance with law the court is g uided by the two-step a

nalytical fra

mework set out in Chevron9

U.S.A. Inc. v. Nat’l Res. Def. Counc il, Inc. , 467 U.S. 837, 842-843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (19 84). Abse

nt the “unambiguo

usly expresse d intent of

Congre ss” the c ourt will determine whethe

r the ag ency ’s interpretation of the an tidumping

statute is a “perm issible construction of the statute.” Chevron , 467 U.S. at 843. The court will accord deferenc e to the agency ’s determination and thus “not impose its own views as to the sufficiency of the agency ’s investigation or question the agency ’s methodology,” so long as such procedures are a “reasonable means of effe ctuating the statutory purpose, and there is substantial evidence in the record supporting the age ncy’s conc lusions . . . .” Ceramica Regiomontana, S.A. v. United States , 10 CIT 399, 404-05, 636 F. Supp. 961 (1986), aff’d , 810 F.2d 1137 (Fed. Cir. 1987).

IV Discussion A Commerce

Lawfully Defined the Scope of the Investigation an d Order

on a Prod ucer-Spe cific Basis When Commerce initiated the antidumping duty inve stigation on Certain Orange Juice from Brazil it crafted the scope of the investiga tion to include only “orang e juice for transport and/o r furt her man ufactu ring” p roduc ed in t wo dif ferent forms as eit her “(1 ) [f] rozen orange juice in a highly

concentrated form, sometimes referre d to as frozen concentrated orange juice for further manufacturing (F COJM); and (2) pasteurized single-strength orang e juice which has not been concentrated, refer

red to as Not-From-Concentrate (NF C).” Initiation of OJ AD Inv. , 70 Fed. Reg. at 7,233-34. Due to the 1987 AD orde r on FCOJ from Brazil still in effect, Commerce specified the scope of the new investigation to cove r “only FCOJM produced a nd/or exported by those companies who were excluded or revoked fr om the existing antidumping order on FCOJ10

from Brazil as of December 27, 2004.” Id. at 7,234 . In its initiation notice Commerce identified the FCOJM producers and exporters subject to the investigation as Cargill Citrus Limitada, Citrosuco Paulista S.A., Frutropic S.A., Montecitrus Industria e Comerc io Limitada, and Sucocitr ico Cutra le S.A. (Cu

trale) a nd specif ied that L ouis Drey fus and Co inbra-Frutesp wo uld be subject to the investigation if either were dee med to be the successor-in-interest to Frutesp and Frutropic, because both companies had bee n revoked from the 1987 FCOJ AD Order

. Id. ; see also 1991 FCOJ F inal Resul ts , 56 Fed. R

eg. 52, 510; 1994 FCOJ F inal Resul ts , 59 Fed . Reg. 53,137. Plaintiff

argue s that the s cope of C ommerce ’s investi gation was craf ted contr ary to statute because it was producer-specific and yielded a

discriminatory result. Plaintiff’s Motion at 14-15 (citing 19 U.S.C. § 1673 (2000)). Plaintiff contends that discrimination occurred when Commerce

subjecte d only

revoked or exclude d produc ers and e xporters to

AD duty liability while exempting companies that were subject to the 1987 order prior to its revoc ation, but now incur no AD duty liability

. Id. ; FCOJ Revocation , 70 Fed. Reg. 19,416. While the International Trade Commission (“ITC”) undertook a full review of the 1987 order and in March 2005 issued a nega tive injur y de terminat ion, the domestic ind

ustry had alre ady

informed Commerce

in November 2004 that it no longer had any interest in the old order. Plaintiff’s Motion at 14; Petition at 3, C.R. at 13. In this regard Plaintiff arg ues that Commerce should have halted the investig ation bec ause it wa s aware of the impe

nding re vocation of the old

order a nd that it c ould result in a new order that would not encompass all Brazilian produce rs of FCOJM. Plaintiff’s Motion at 14-15. Louis Drey fus contends that the uneven application of antidumping duty laws to producers and exporters of identical merchandise constitutes discrimination, which is contra ry11

to the AD statute. Id. Becau se the an tidumping

statute r equires that (1) d uties be im

posed on “ all imports of the subject merchandise found to be dumped” and (2) e xporters and producers not investigated must be subject to the “all others” rate, Plaintiff arg ues that by cra

fting a producerspecific scope Commerce acted contra ry to its mandate. Id. at 15-16 (citing 19 U.S.C. §§ 1673, 1673d(c)). Reading the statute otherwise, Plaintiff contends, would impermissibly construe the statute contrary

to the United States’ international obligations. Id. at 16- 17 (ci ting Murray v. Schooner Charming

Besty, 6 U.S. (2 Cranch)64, 118, L . Ed. 208 ( 1804) (“ [A]n act of Congre ss ought never to be construed to violate the law of na tions if any other possible construction remains . . . .”)). In support of its argument Plaintiff cites Article 9.2 of the World Trade Organ ization Ant

i-dumping

Agree ment (“WT O AD Ag

reemen t”) to whi ch the Un

ited State s is party. Id. at 16. The agreement provides that the antidumping duties shall be collected “on a nondiscriminatory basis on imports of such product from all sources.” Id. ; WTO AD Ag reemen t, Art. 9.2. Plaintiff notes that the U.S. Trade Representative has arg ued before World Trade Organization (“WTO”) that non-discrimination for purposes of Ar ticle 9.2 is achieved when duties are properly

imposed on a “product-specific [] basis, not a company -specific basis.” Appellate Body

Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan , ¶ 48, 150 , WT/DS244/A B/R (December 15, 2003) ( adopted January 9, 2004) . Plaintiff also cites to the Statement of Administ rative Actio n to the Uruguay Round Agreements Act, which requir es that LTFV investigations be conducted on a country -wide basis, and therefore, it say s, implicitly not on a produce r-spec ific basi s. Plaintif

f’s Motion

at 17-18 ( citing th

e Urug uay Round Ag

reemen ts Act, Statement of Administrative Action (“SAA”), H.R. Doc. 103-826 at 833, 875 (1994), reprinted12

in , 1994 U.S.C.C.A.N. 4040). The policy rea sons underlying the se rules, Plaintiff contends, are to avoid petitioners “cherry -pick[ing] which foreign producers/exporters would be subject to an antidumping investigation and duties” and thus convert the antidumping leg islation into one that creates, rather than remedies, unf air trading conditions. Id. at 18. Plai ntiff con cedes that while particu lar prod ucers a nd exporte

rs are r egular ly a nd lega lly e xcluded fr

om AD duty

liability under orders pursuant to an investigation, it is not proper to exclude companies that have not been investigated and found not to be dumping. Id. at 16-17 nn.7-8. Plaintiff suggests a number of actions that Commerce could have taken in order to subseque ntly include remaining

FCJOM producers within the scope of the new investigation following the revocation of the old order. Id. at 18-19. Plaintiff further argues that it was incumbent on Commerce to take action to “prevent petitione rs from ‘ gaming ’ the ant

idumping statute,” and bec ause it wa s aware that its antidumping investigation would produce “prejudicial and discr iminatory results.” Id. at 19-20 n.12 ( citi ng Gilmore Steel Corp. v. United States , 7 CIT 219, 223, 585 F. Supp. 670 (1984)). Defendant contends that nothing in the antidumping statute bars it from c rafting the scope of an investigation on a company -specific basis where circumstance s exist that warrant such a

measure . Defen

dant’s Mo tion at 12. Commerce asserts t hat the de cision to in

clude spe cifical ly named pr oducers within the

scope of the inves tigation

constitute s a reas onable exercise o f its discretion. Id. at 9. As an initial matter, it is incumbent on Commerce to engage in statutory interpretation where the “Congress has not directly addressed the precise question at issue.” See Chevron , 467 U.S. at 842. In such circumstance s the role of the court is “not [to] conclude that the agency construction was the only one it permissibly could have adopted to uphold the construc tion,” but13

instead to determine whether the agenc y’s interpre

tation was “reasonable” in light of the rec ord evidence. Id. at 843 n.11, 844. Here, the antidumping statute does not prohibit Commerce from crafting a company

-specific scope, nor is “discrimination” contrary to the statutory reg

ime. 19 U.S.C. § 1673. The Congressional intent underly ing the antidumping statute is to “protect domestic manufacturing against for eign manufacturers who sell at less than fa ir market value.” Koyo Seiko Co. v. United States , 20 F.3d 1156, 1159 (Fed. Cir. 1994). Commerce’s interpretation of the statute led to the inclusion of producers revoked or excluded from a previous order into a new investigation in which the scope was be st delineated by produc er. Plaintiff’s contention that Commerce is prohibited from initiating investigations with a company-spe cific scope covering revoke d and excluded producers is not supported by binding law. Commerce has periodically initiated investigations with company-spe cific scopes pertaining both to revoked and excluded producers. See, e .g. , Issues and Decision Memorandum for the Ant idu mpin g D uty In ves tig ati on o f Certa

in O ran ge Juic e fr om B raz il f

rom Ste phen J. Claeys, Deputy

Assistant Sec’y for I

mport Admin. to David M. Spooner, Assistant Sec’y for Import Admin., U.S. Dep’t of Commerce (January 6, 2005) (“Decision Memo”) at 6, C.R. at 70. For example, in Commerce’s investigation of Woodwind Pads the petitioner requested an investig ation into woodwind in strument k ey s manufa

ctured a nd exporte d by

a single manufacturer that had been revoke d from a previous order on identical merchandise. Initiation of Antidumping Duty I

nvestigation; Pads for Woodwind Instrument Key s from Italy

Manufactured by L uciano Pis oni Acce ssori Strumenti Music ali A Fia to , 57 Fed. Reg. 54,220 (November 17, 1992) (“ Woodwind Pads ”). On the basi s of the peti tion, Co mmerce launch ed a LTFV investig ation limiti

ng the sc ope of the

investig ation to “

pads for woodwind

instrumen

t key s,2 The fina l determi nation covered two produc ers, but was still co mpany -specif ic beca use only two manufactur

ers and exporters of woodwind pads from I taly were identified. See Final Determination; Antidumping Duty I nvestigation of Pads for Woodwind Instrument Key s From Ital y Ma nufactu red by Music Cent

er s.n.c . di Lu

ciano Pisoni and L

ucien s.n .c. di Da

nilo Pisoni & C. , 58 Fed. Reg. 42,295 (August 9, 1993).

3 Plaintiff ’s conte ntion that TRBs from Japan does not se

t prece dent for

Commerce ’s use of company- specific scopes is misplaced because the cour t’s concern in NTN Bearing Corp. of Am. v. United States , 14 CIT 623, 747 F. Supp. 726 (1990) was that Commerce had crafted the scope to conditionally include NTN merchandise in the event the merchandise would no long er be subject to the preexisting order from which it had not y et been revoked. Id . In an earlier decision, the court noted that Commerce impermissibly departed from its own practice by including a category

of merchandise in a new investigation which wa s already covered by

an existing antidumping duty order thr ough conditional inclusion, but the court did not hold that drafting a company

-specific scope was contrary to law. NTN Bearing Corp. of Am. v. United 14 which are manufactured by Pisoni.” 2 Id. ; see also

Decision Memo at 6, C.R. at 70. F urther, in another investigation into Ny lon Im pression Fabric Commerce initiated an investigation into two named producers that had previously been excluded from an existing order. Nylon I mpression Fabric From Japan: Initiation of Antidumping D uty I nvestigation , 50 Fed. Reg. 28,111 (July 10, 1985) (“ Ny

lon Im pression Fabric ”). Commerce defined the scope of that investig ation to include only “ny lon impression fabric from Japan, produced by or for the account of Asahi and Shirasaki.” Id. Similarly in an investigation into tapered r oller bearings from Japan, Commerce defined the scope of the investigation to cover a ll tapered roller bearings and par ts thereof manufactured exclusively by NTN, a manuf

acturer that had previouslybeen revoked from a preexisting order on identical merchandise. Final Determination of Sales at Le ss Than Fair Value; Tapered Roller Bearing s and Parts Thereof, Finished and Unfinished, From Japan , 52 Fed . Reg. 30,700 (August 17, 1987) (“ TRBs from Japan ”). The scope of the investigation was craf ted specifically to pre

vent NTN from importing parts of the merchandise a nd assembling it in the United States thereby c ircumventing the order. Decision Memo at 6-7, C.R. at 70-71. 3 PlaintiffStates , 13 CIT 91, 94, 705 F. Supp. 594 (1989), remanded on other grounds , 892 F.2d 1004 (Fed.

Cir. 1989). 15 distinguishes these cases by arguing that the producers a nd exporters had received “nondisc riminator y tr eatment” because the original orde

r remained in plac e and the refore all producers were subject to either the original order or the follow-up investigation and that “no exporter was exempt from antidumping duties without having first been investigated a nd found not to be dumping.” Plaintiff’s Motion at 17 n.8. How eve r, a ll pr odu cers or

exporte rs o f FC OJM have been recently

investigated either as part of the sunset revie ws of the old order or as part of the new in

vestiga tion. I n fact, b oth Citrovi

ta and B ranco Pe

res Citru s, which Pl aintiff c ites to in its brief as being exempted from AD liability while still dumping, were found in the final IT C sunset determination to not cause material injury to the domestic industry, despite an ea rlier affirmative injury

determination. Frozen Concentra ted Oran ge Juice From Br azil; Fina l Results of the Expedited Sunset Review of the Antidumping Order , 69 Fed. Reg. 54,117 (Dep’t of Commerce September 7, 2004) (“ Final Results of Expedited FCOJ Sunset Review ”); Second FCOJ Sunset Review at 3 . There fore al l produce rs and exporters we

re subje ct to AD du

ty liability prior to the revocation of the 1987 order and when the new investigation was initiated. Second FCOJ Sunset Review , at 3-5; FCOJ Revocation , 70 Fed. Reg. 19, 416; Initiation of OJ AD Inv. , 70 Fed. Reg. 7,233. Furthermore, in ke eping with the decision handed down in NTN Bearing , 13 CIT 91, Commerce declined to cr aft a scope that conditionally included producers and exporters still subject to the 1987 order and instead named all producers that at the time we re excluded or revoked from that order to be included in the new inve stigation. Initiation of OJ AD Inv. , 70 Fed. Reg. 7,233.16

Further more, Pla intiff ar gues tha t applica tion of ADduties on a

non-discriminator

y ba sis is implicit in 19 U.S.C. § 1673, which requires that duties are assessed on “merchandise” and not on specif ic produc ers. Plai

ntiff’s Re ply to Defen dant’s a nd Defe ndant-I nterven ors’ Resp onses to Plaintiff’s Motion for Judgment Upon the Agency Record (“Plaintiff’s Reply ”) at 2 (citing 19 U.S.C. § 167 3; Jia Farn Mfg. Co., Ltd. v. United States , 17 CIT 187, 192, 817 F. Supp. 969 (1993 )). Cl early anti dump ing law s are ai med at mercha ndis e and n ot at s pecifi c forei gn producers, but this argument does not take into account the limited circumstanc es in which Commerce has reason to craft a nar rower scope. I

n addition, Plaintiff cites to 19 U.S.C. § 1673d(c )(1)(B ) as req

uiring t hat an “a ll others” rate be set for producer

s not inves tigate d, aga

in not recognizing that Commerce with respect to FCOJM was restra ined in broadening the scope of the investigation to avoid an overlap with the existing order. Plaintiff’s Reply at 2. Plaintiff ’s conte ntion that a

reading of the sta tute that p ermits Commerce to draft a company-spe cific scope is contrary to the United States’ international obligations is also without foundation. Whereas the Uruguay Round Agreements Act and Article 9.2 of the WTO AD Agreement may

refer to antidumping investigations as traditionally conducted and applied on a country-wide

basis, neither agreement, by implication or otherwise, prohibits Commerce from conducting investigations or issuing orders per taining to specific producers or exporters. SAA, H.R. Doc. 103-826 at 833, 875; WTO AD Agreement, Art. 9.2. Her e, Commerce acted

reasona bly by c rafting a scope t hat prev ented an

overlap with an exis ting ord

er, and c ontrary

to Plaintiff’s contentions, did not engage in “cher ry-picking ” whereby

producers and exporters would be subject to the order. In f act, launching an investigation on the basis of a pe tition, as required by

statute, despite an existing order and an on-going sunset review process, did not17

create unfair trading c onditions, whereas permitting foreign produce rs to chose which investigations and orders they would be subject to might very well do so. Moreover, it was not incumbent on Commerce to refuse to initiate an investiga tion based on merchandise already

subject to an order, to rescind the investigation due to the on-g oing sunset review of the old order, or to rescind the investig ation when the 1987 order was revoked. Commerce therefore did not err in deny ing petitioners’ request to include all Brazilian producers of FCJOM within the scope of the order after revoca tion of the original order. See Letter from Matthew M cGrath, Barne s, Richar dson & Col

burn to Ca

rlos Gutie rrez, Sec ’y

of Commer

ce, U.S. Dep’t of Commerce (March 31, 2005) (“Petitioners’ Request for Clarification of Scope”), C.R. at 53, P.R. 103 ; Lett

er from L ouis Apple , Dir. AD/CVD Oper ations, U. S. Dep’t o f Commerc e to Matthew T . McGra

th, Bar nes, Rich ardson &

Colburn (June 27, 2005 ) (“Comme rce’s Re sponse to Request for Scope Clarification”) at 1-2, Plaintiff’s Non-Confidential Appendix, Tab K. Section 16 73 provide s that anti dumping d uties will b e imposed

if: (1) Co mmerce makes a determination that “a class or kind of foreign mer chandise is being, or is likely to be, sold in the United States at less than its fair value” and (2) the I nternational Trade Commission determines that “an industry in the United States is materia lly injured, or is threatene d with material injury . . . by reason of

imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation.” 19 U.S.C. § 1673(1)-(2). Furthe r, 19 U.S.C. § 1673a which governs procedures for the initiation of antidumping duty investigations is silent on the matter of initiating investigations with respect to excluded or revoked producer s. 19 U.S.C. §1673a. Regulations pertaining to the termination of an AD investig ation and sunset reviews also do not confer any

obligations upon Commerce to terminate a review based on a nalogous circumstances4 Commerce initiated the new investigation on February 11, 2005 and the ITC’s neg ative injury determination was published in the F ederal Register on March 29, 2005. Initiation of OJ AD Inv. , 70 Fed. Reg. 7,2 33; Frozen Concentrated Orange Juice from Brazil Determination , 70 Fed. Reg. 15,884 (I TC March 29, 2005) (“ ITC FCOJ Notice ”).

5 Petitioners filed a request for clarification of the scope investigation, seeking to include producers/exporters of FCOJM previously subjec t to the 1987 order after revocation of the orde r. Petitioners’ Request for Clarification of Scope. Commerce responded to this reque st that petitione rs should f

ile an ame

nded peti tion to incl

ude prod ucers pr eviously subject to

the old order. C ommerce ’s Respon se to Request for Sc ope Clari fication at 2. Comme

rce note d in its response to the scope clarification request that “it is the Depa rtment’s practice to accord the petitione rs’ scop e descr

iption gr eat weig ht in an inv estiga

tion beca use the pe titioners can best determine from what imports they require relief.” Id. at 2. Petitioners did not file an amended petition. 18 to those of this case. 19 C.F.R. § 351.207. As a result, Plaintiff’s contention that “antidumping duties be applied t o all subje ct imports

from a c ountry

subject to

an invest igation , unless a particular producer/exporter is investigated and f ound not to be dumping,” is unsupported by the statutory scheme. Plaintiff

’s Motion a

t 15. I n addition , becau se Commer ce is re quired to

initiate an antidumping investigation within a limited time after a properly filed petition, it did not have the option of awaiting the outcome of the sunset review bef ore launching and deciding the sc ope of the new investigation. 19 U.S.C. § 1673a(b)-(c)(1) (A). 4 Inste ad, Commer ce had to craft a scope tha t excluded

produce rs and exporters al

ready subject to

an order in effe ct. 5 Contrary

to Pl ai nt if f’ s c on te nt io n, Co mm er ce is no t a t l ib er ty t o “ re st ar t” an in ve st ig at io n. St at ut or il y, Commerce may only

terminate a continuing investigation in limited circumstances, such as where petitioners withdraw their petition or the I TC determines that imports of the subject merchandise are negligible. 19 U.S.C. §§ 1673c(a)(1)(A); 1673b(a)(1). I n addition, the court has held it ap propria te to term inate an investig ation “in

order to correct a manife st error

which tai nts the proceeding,” Gilmore Steel , 7 CIT at 223, and if the “alleg ations essential to the fundamental6 In Pla intiff’s Reply it argues that Gilmore confer red Comme

rce with the authority

to prevent a “discriminatory result” resulting from the exclusion of producers subject to the 1987 order, upon which it should have acted. Plaintiff’s Reply at 2. Plaintiff fails to show that Commerce committed a “manifest error” under Gilmore or that a ny o ther leg al author

ity c ompels Commerce to terminate an investigation upon the subsequent revoca tion of an order which has the effect of leaving some produc ers or exporters free of AD duty liability. 19 sufficiency

of a petition are false,” Tung Fong I ndus. Co. v. United States , 366 F. Supp. 2d 1308, 1316 (CIT 2005). Here, Commerce properly crafted the scope to include all excluded and revoke d Brazilian exporters of FCOJM and all Brazilian exporters of NFC because at the time a valid orde r was still in eff ect for FCOJ. Bec ause Comme rce is no t preclu

ded from craftin g compa ny- specific scopes w here ne cessar

y, a nd beca use Commer

ce crafted the

scope so a s to avoid a

n overla p with an existing order, it did not commit a “manifest error” within the parameter s of Gilmore Steel

. 6 Further, this court under Chevronis required to give deference to Commerce’s determination where it is consistent with “the intent of the legislature or the g uiding purpose of the statute.” Ceramica Regiomontana , 10 CIT at 405 (citi ng Chevron , 467 U.S. at 843-844). In this instance, Commerce ’s initiati on of the i nvestig ation and

its scope determination con stituted a reasona ble means of effectuating the applica ble statutes, supported by substantial evidenc e in the record and in accordance with Commerce’s “pre cedent, practice, and the law.” Id. ; Decision Memo at 8, C.R. at 72

.

B Comm erce La

wfully Included M erchandis e Produc ed and Export ed by Coinbr a-Frut esp

Within the Scope of the New Order Plaintiff argue s that Comme

rce cr afted a scope in w

hich ther e was an impermiss ible overlap between the old order and the new investigation and order, and that Coinbra-Frutesp was20

subject to both. Plaintiff’s arguments are unavailing be cause: (a) Commerce may conduct investigations on producers that are revoked from an existing antidumping order, (b) CoinbraFrutesp was revoked from the old order be fore the petition for the new investigation was filed, (c) Commerce has the authority to make a successor-in-interest determination at any time during the investigation, and (d) Commerce did not expand the scope of the final de termination by including Coinbra-Frutesp in the new investigation.

1 Comm erce M ay Conduct Investiga

tions on P roducer s Revoked fr om an Exis ting Antidumping Order Plaintiff contends that Commerce may not initiate an antidumping investigation on merchandise already

covered by

an order and acted contrary to law in its initiation of the investigation of Certain Orange Juice from B razil. Plaintiff’s Motion at 21. Plaintiff’s primary cited au thority is NTN Bearing , 13 CI T 91, 96, in which this

court he ld that Comme

rce is prohibited “from initiating a new investigation which includes within its purview a cla ss of mercha ndise tha t is alrea dy s ubject to an outsta nding a ntidumping

duty order.” The cour

t, however , arrive d at its con clusion ba sed on the

rationa le that Com

merce would eng age in redundancy

by launching

multiple investigations of identical merchandise when such investigations could only per missibly result in a single order

. Id. at 95. In addition, the court noted that “[a]n affirmative antidumping duty determination should only be based on a class of merchandise which actually will be subject to a resulting antidumping duty order.” Id. Defend ant arg ues that it permissib ly c

rafted the scope of the inv estiga

tion so as to

avoid an overl ap betwe en the old order a nd the new

investig ation and

that it has

wide lati tude in21

defining the scope of an investigation and or der. Defendant’s Motion at 33. In c ircumsta

nces whe re the po ssibility

of adminis tering

two proc eeding s arises, Commerce has developed a policy to craft the scope of the latter procee ding to ensure that there is no overlap. Decis ion M emo at 7, C. R. at 7 1 (cit ing Notice of Initi ation of A

ntidumping

Duty Investigations: Mag

nesium Metal From the People’s Republic of China and the Russian Federation , 69 Fed. Reg. 15, 293, 15,29 4 n.2 (Mar ch 25, 200 4); Notice of Final Determination of Sales at Less Than Fair

Value: Pure Magnesium in Granular For m From the People’s Republic of China , 66 Fed. Reg. 49, 345 (Septe mber 27, 2 001)); see also Defend ant-I nterven ors’ Resp onse in Opposition

to Rule 56. 2 Motion for Judgmen t Upon the

Agenc y Re cord (“ Defend

antIntervenors’ Motion”) a

t 24. In fact, Commerce c onsiders avoiding double assessment of duties a key e lement in crafting a scope. Id. (citi ng Color Tele vision Rec eivers F

rom Kore a; In

tention to Review and Preliminary Re sults of Changed Circumstances Administrative Review and Tentative Determination to Revoke Antidumping Duty Order , 52 Fed. Reg. 6,840 (March 5, 1987)). Here, Commerce acted consistently with prevailing law and with the holding in NTN Bearing by leg itimately initiating an investiga tion with a company-spec ific scope that did not overlap with the existing ord

er on the same mer

chandise , and by

launchin g an inv estiga

tion into producers and exporters revoked or excluded from the old orde r. Acting on a petition aimed at producers and exporters of FCOJM and NFC (an expanded class of mer chandise) could only

be achieved by

excluding companies already subject to an order on similar merchandise. I ndeed, as stated by the Gover

nment in its brief “the purpose of the company -specific scope in this case was to address dumping by

revoked and excluded producers in a way that did not overlap with the 1987 order.” Defendant’s Motion at 33. Moreover, initiating investigations on a class of7 Customs’ Notice of A ction is no t part of t he admini strative

record of this ca se but is periodically re ferred to in documents contained in the record a nd in the parties’ briefs. See, e .g. , LDCI CCR Request

at 4-5, C.R. at 5-6 . Commerce rejected the inclusion of the notice in the administrative record pursuant to 19 C.F.R. § 351.104(a)(2)(ii)(A) because it contained new factual information and was untimely filed. Letter from Shawn Thompson, Progr am Manager, AD/CVD Operations, U.S. Dep’t of Commerce to Christopher Dunn, Willkie Farr & Gallagher LL P (November 2, 2005) (“Rejection L etter”), C.R. at 90. 22 merchandise already

subject to a pre-existing order is not contrary to past precedent. For example, in Woodwind Pads and Ny lon Im pression Fabric , Commerce conducted investigations of different producers on the same merc handise that had previously be en investigated and been subject to an order. Id. at 12; see Woodwind Pads , 57 Fed. Reg. 54, 220; Nylon I mpression Fabric , 50 Fed. Reg. 28,111.

2 FCOJ P roduced and

Exported by

Coinbra-F rutesp was N ot Subjec t to the O ld Antidumping Order when the Petition for the New Investigation was Filed Plaintiff asserts that Customs’ Notice of Action 7 filed in March 2004 subjected CoinbraFrutesp to the old order and that Commerce as a re sult impermissibly included Plaintiff in the new investigation based on its successor-in-interest deter mination. Plaintiff’s Motion at 22. Louis Drey

fus also contends that the rescission of its requested chang ed circumstances review, combined with the revocation of the 1987 order, automatically subjected Coinbra-Frutesp to the old order and that Commerce consequently lost its opportunity to determine Coinbra-Frutesp’ s dumping liability when that was r evoked. Id. at 29-30. In Customs’ Notice of Action it stated that Coinbra-Frute sp were subject to pay ment of cash deposits at a rate of 1.96% in the absence of a changed circumstance s review confirming Plaintiff’s right to exclusion from antidumping duty de posits. LDCI CCR Request at 4-5, C.R. at23

5-6. In response, Louis Dreyfus filed a request for a changed c ircumstances review asking for affirma tion of its r

evoked s tatus unde

r the old order as

the succ essor-in-intere st to both F rutesp and Frutropic. Id. at 5-6, C.R. at 6-7. In March 2005, L ouis Dreyfus withdre

w its request for the changed circumstances re view and asserted in a letter to Commerce that Coinbra-Frutesp is not the successor-in-interest to Frutropic and F rutesp and therefore should “remain excluded from this invest

igation .” LD CI Withd

rawal of CCR Request

1-2, Plain

tiff’s Ap pendix at Ta

b J; Scope Comments Letter at 10, C.R. at 60. Louis Drey

fus has maintained that it was the successor-in-interest to Frutesp a nd Frutropic since the revocation of both companies fr om the 1897 AD order, in 1991 and 1994 respectively , and thus has not paid any duties under the old order. LDCI

CCR Request

at 3-4, C.R. at 4-5. Customs’ Notice of Action appropriately requested that Plaintiff submit a changed circumst ances r eview re quest in or

der to af firm its exc lusion from the 1987 order und er the “ all others” rate based on the fact that Plaintiff was tra ding under the name Coinbra-Frutesp, a company not in existence at the time of the or iginal order, not subject to the original investig ation, an

d never r evoked f rom the or

der in its own capa

city . Plaintiff

predict ably submitted a

request for a changed

circumst ances r eview in w

hich it re iterate d the posit ion that it had taken for the duration of the period in which it owned and ope rated Frutesp and Frutropic, namely that Coinbra-Frutesp was the successor-in-interest to both and theref ore the revocation from the order should apply to all entries of FCOJ by Coinbra-F rutesp. Id. at 5, C.R. at 6. Plaintiff’s subsequent withdrawal of its request for review and its cha nge in position would at minimum re

nder it lia ble for it s omission to

pay duties und

er the ol d order d

ating ba ck almost a decade.24

Plaintiff argues that Custom’s Notice of Action was “final and c onclusive” agency action rendering Coinbra-Frutesp liable unde r the old order absent a request for a sc ope ruling or changed circum stanc es revi ew. Pl ainti ff’s M otio n at 24 -25 (ci ting Fujitsu Ten Corp. of Am. v. United States , 21 CIT 104, 107, 957 F. Supp. 245 (1997), aff’d s ub nom. Sandvik Steel Co. v. United States , 164 F.3d

596 (Fe d. Cir. 199 8); Sandvik Steel Co. v. United States , 21 CIT 140, 142, 957 F. Supp. 276 (1997), aff’d 164 F.3d 596). Plaintiff also contends that Customs’ Notice of Action is part of the record despite Commerce’s e xclusion of the document from the administr ative re cord bec ause it wa s untimely filed. Pla intiff’s Motion at 2 3 n.15; see Rejection Letter at 1-2, C.R. at 90-91. Plaintiff’s arg ument fails to recognize that Commerce makes scope decisions that are binding upon Customs, not vice versa. Indeed, Customs’ role in liquidating entries subject to antidumping orders is “merely ministerial” and “follows Commerce’s instructions in assessing and collecting duties.” Mitsubishi Elec. Am., Inc. v. United States , 44 F.3d 973, 977 (Fed. Cir. 1994). I n Mitsubishi Elec. , the Fe deral Cir cuit stre ssed that

the statut e upon which Plaintiff also relies, “makes clear that Customs does not make any section 1514 antidumpin

g decis ions” and

that “Cust

oms canno t modify

. . . [Commer

ce’s] determinat

ions, their underlying

facts, or their enforcement.” Id. (internal citations omitted). Plaintiff’s proposed reading of the statute would divest Commerce of its role of “ issuing, interpreting and implementing anti-dumping orders.” Defenda nt’s Motion at 39. The real effect of the statute’s language is to prevent produce rs and exporters from retroactively challenging the scope of a n order once the entries are liquidated by Customs and the exporter did not request a scope decision from Commerce at the time. See 19 U.S.C. § 1514(b). Further, Plaintiff’s reliance on Sandvik Steel and Fujitsu Tendoes not lend support to the proposition that Customs’ liquidation25

is “final and conclusive;” in fact, nothing in these opinions sugg est that Commerce is precluded from making a scope determination that is contrary to Customs’ scope determination prior to the liquidation of entr

ies. Customs’ Notice of Action did not become part of the record and ther efore cannot be relied u pon as for

ming the basis for Plaintiff ’s liabilit y un der the o ld order . Accor

ding to prevailing case law only

“documents and materials directly or indirectly consider

ed by ag ency decision-makers” become part of the a dministrative record. Thompson v. United States , 885 F.2d 551, 555 (9th Cir. 1989). Plaintiff has not adequately demonstrated that Commerce considered Customs’ Notice of A ction in its investig ation and

theref ore this c ourt is simil arly

unable to base a decision on a document which is not contained in the record, and upon w hich the agency ’s determination did not rely. This cour t held that “tho se docume

nts at the a

gency which be come sufficiently intertwined w ith the relevant inquiry a

re part of the record, no matter how or w hen they arr ived at the agency .” Acciai Speciali Terni S.p.A. v. United States , 24 CIT 1064, 1071, 118 F. Supp. 2d 1298 (2000) (internal citations omitted). However, there Commerc e used signific ant portions of the a dministra tive rec ords in two

separa te proce edings t

o arrive at its conclusion in both proceedings, therefore c reating an overlap which nec essitated that the court was able to consider both records on review of the agency ’s determination. Id. at 1072. This is not the case here. Further more, the notice of rescissi on of the c

hange d circum stances

review d id not state that “CBP would continue to suspend liquidation of Coinbra-Frutesp’s entries of FCOJ.” Plaintiff’s Motion at 28. It stated that Customs would continue to suspend liquidation “as appropriate” of “FCOJ from Brazil,” beca use at the time of the notice of rescission the 198726

order was still in effect. Notice of Rescission , 70 Fed. Reg. 19,417 . The fa ct that Com

merce d id not issue a final determination in the changed circumstanc es review prior to rescission of the review a nd the issue becomi

ng moot after the

revoca tion of the

old order did not aut

omatical ly subject Coinbra-Frutesp to liability for duties under the “all others” rate of the old order

. As a result of the fact that Customs’ Notice of Action does not establish lega lly binding antidumping duty liability upon Coinbra-Frutesp under the old order and bec ause the Notice of Action never became part of the administrative r ecord underly

ing Commerce’s investigation that led to the inclusion of Coinbra-Frutesp into the new investigation, Coinbra-Fr utesp was not subject to the old antidumping order on FCOJ from Brazil when the petition for the new investigation was filed.

3 Commerce

May Conduct a Successor-in-Interest Investigation to Decide Whether an Entity Falls Within the Scope of the Antidumping Investigation Louis Drey fus conte nds that Com

merce d evelope d its succ essor-in-intere st test to be able to consider a company ’s change in circumstances af ter an antidumping order is in place, but that Commerce acted contrary to law by making

its successor-in-interest determination after the order to which it applied was revoked. Plaintiff’s Motion at 30-31 (citi ng Marine Harvest (Chile) S.A. v. United States , 26 CIT 1295, 1310, 244 F. Supp. 2d 1364 (2002)) . Plaintiff stresses that Commerce in the past has only ma de successor-in-interest determinations in the context of orders still in effect. Id. at 31 ( citi ng Jia F arn Mfg. , 17 CIT at 190). Defendant argues that the succ essor-in-interest determination was made in the context of the new investigation, and that Commerce may “lawfully addr

ess successor-in-interest issues as27

necessary to define and interpret the scope of an investig ation and order.” Defendant’s Motion at 28. Defe ndant fur ther note s that Plain

tiff is not contestin g the me rits of the success or-in-in

terest determination, but the time and context in which it was made. Id. Commerce examined the successor-in-interest issue both in the context of the 1987 order and in the new inve stigation. In

its initiati on notice

Commerce

stated tha

t “the De partmen t will also examine the suc cessor- in-inter est issues for both Frutesp a

nd Frutr opic in the

context of

this proceeding” and further

noted that “should the Department find Louis Dre yfus or COI

NBRAFrutesp to be the successor-in-interest to these compa nies, the successor company will be included as part of this proceeding.” Initiation of OJ AD Inv. , 70 Fed. Reg. at 7,234. Plaintiff’s petition for the changed circumstance s review addresses the successor-in-inter est issue in the context of the old order advocating that Coinbra-Frutesp a nd/or Louis Drey

fus be considered the successor-in-interest to Frutesp and Frutr opic so as to remain revoked from AD liability under the old order. LDCI

CCR Request at 3-4, C.R. at 4-5. Given the subsequent change in Plaintiff’s position regarding its successor-in-intere st relationship with Frutesp and Frutropic and Commerce’s rescission of the changed c ircumstances review it remained incumbent upon Commerce to determine whether Plaintiff was the succe ssor-in-interest for purposes of the new investigation. This determination could have affected liability under the old order, but this issue was moot due to the revocation of the 1987 order prior to the issuance of the final determination. 1987 FCOJ AD Order , 52 Fed. Reg. 16, 426; Notice of Rescission , 70 Fed. Reg. 19, 417; Final Determination , 71 Fed. Reg. 2,1 83. I n respons e to Plainti ff’s contention that Commer ce is prohibite d from pe

rforming a succe ssor-in- interest

determination unde

r the Tar iff Act in these circumstances, Commerce in its Issues a nd Decisions Memorandum stated that “while the Act8 Contrary to Plaintiff’s asser tions, Valkia Ltd. v. United States , S li p Op . 04 -71 , 20 04 C IT LEXI S 66 (CIT June 18, 2004) does not stand for the proposition that the only exception to when Commerce may utilize the succe ssor-in-interest test outside an administrative review or chang ed circumst ances r eview is “ where there is a

chang e of cir

cumstanc es during a LTFV investiga tion that would

justify use of the

success or-in-in

terest te st.” Plain

tiff’s Mo tion at 31 n .21 (emphasis in origina l). I n fact, t he case is illustra tive of the

fact tha t Commerc e has disc

retion to a

pply the test outside of its conve ntional us e when th e need a rises. 28 does not expressly provide for this ty pe of determination in an LTF V investigation, we find that it does also not expressly prohibit it.” Decision Memo at 16, C.R. at 77. Coupled with Plaintiff’s withdrawal of its petition for a changed circ umstances review, this is sufficient to warrant Commerce’s inclusion of the successor-in-interest issue in its final determination. Moreove r, Commerce’s scope determination merely affirmed Plaintiff’s stated position and long-standing practice of not pay

ing duties under the old order, in turn subjecting Louis Dreyfus to the ne w investigation and subsequent order. Commerce has the discr etion to define the scope of an investig ation and

there is n o law prohibiting

it from ap

ply ing its su ccessor -in-inte rest test as a mechanism to determine whether a certain produc er should be included in the scope. 8 Commerce is entitled to deference in making its determination and acte d consistently with its authority and discretion in deciding that a successor-in-intere st finding was an appropriate means of determining the scope of the investigation and subseque nt order. Chevron , 467 U.S. at 843.

4 Comm erce D id Not Expand the Scope of the Investi gation in it s Final Determ ination by

Including Coi nbra-Frutesp Withi n the Scope Accord ing to Pla intiff, Co mmerce l acked the author ity t o include Coinbra- Frutesp

within the scope of the final determination because the I TC excluded merchandise produced and exported by Plaintiff from the scope of its preliminary injury

determination. Plaintiff’s Motion at29

33. Plainti ff conte

nds that wh

ile Commer

ce may clarify the scope of an inve stigation, it is statutorily prohibited from expanding the sc ope. Id. (citi ng Royal Bus. Mac h., Inc. v. United States , 1 CIT 80, 87, 507 F. Supp. 1007 (1980)). The princ ipal assertion made by Plaintiff is that Commerce is prohibited from expanding the scope “mid-stream” be cause (1) Commerce’s final determination may only

apply to mercha

ndise that served as the basis for the I TC’s affirmative prelimina ry injury determination and , (2) the scope at each sta ge of the investigation must r emain unchanged. Id. at 34. Defendant argues that bec ause the scope from the outset of the investigation contemplated the inclusion of Coinbra-Frutesp, Commerce’s subsequent inclusion of Plaintiff constituted a mere clarification of the scope and not a n expansion. Defendant’s Motion at 31-32. Defend ant furthermore

distingu ishes Plain

tiff’s su pport for its propos ition as re lyin

g exclusi vely on cases in which there was a request to modify , as opposed to expand, the scope to include merchandise not covered at the outset of the investig ation. Id. It is well established that Commerce must show caution in expanding the scope of an investigation to cover merchandise that was either not included or specifically excluded at the outset of an investigation. See, e .g. , Smith Corona Corp. v. United States , 16 CIT 562, 565, 796 F. Supp. 1532 (1992). Plaintiff also provides persuasive authority that supports the notion that Commerce may only

include in its final determination merchandise that served as a basis for ITC’s preliminary

injury determination. Plaintiff’s Motion at 34 (citing 19 U.S.C. §§ 1677(25), 1673b(a)(1)). However, ca se law suggests that Commerce has broa d authority to modify

the scope of an investigation so long as it is supported by substantial evidence and does not have a prejudicial effect. Torrington Co. v. United States , 14 CIT 507, 511 n.3, 745 F. Supp. 718 (1990),30

aff’d , 938 F.2d 1276 (Fed. Cir. 1991). Here, Fr utropic, Frutesp and Coinbra-Frutesp were specifically me

ntioned in the initiation notice as conditionally subject to the investigation and were clearly

producers and exporters of the “class or kind of merc handise” under investigation. Initiation of OJ AD Inv. , 70 Fed. Reg. at 7,234; 19 U.S.C. § 1677. In Commerc e’s Issues and Decision Memorandum, the Department noted that “[i]n both our notice of initiation and the preliminary dete

rmination, we stated that we intended to make a successor-in- interest finding with respect to Coinbra-Frutesp in order to determine whe ther its exports of FCOJM are subject to this proceeding.” Decision Memo at 12, C.R. at 73. Commerce did not suspend liquidation of entries of Coinbra-Frutesp’s FCOJM simply because it is prohibited from imposing provisional measures on imports upon which the ITC did not make a pr eliminary injury

determination. Id. at 19, C.R. at 80 (citing 19 U.S.C. § 1673). Plaintiff’s contention that the merchandise was excluded ab initiois th erefor e with out m erit. Addit ional ly, Comm erce was not u ndert aking a scope determination nor does the inclusion of a successor-in-inter est to a party a

lready within the scope of the investigation act to expand it. Inde ed, had Coinbra-Frutesp been excluded from the scope in the final determination, this may have served to alter the scope. Plaintiff’s conditional inclusion into the investigation did not cause prejudice, and although Plaintiff was not specifically me

ntioned in the ITC’s preliminary determination, Coinbra-Frutesp was mentioned in its final determination. Final ITC I njury Deter

mination at IV-1. The inclusion of CoinbraFrutesp was therefore ref

lected in both agencies’ actions throug hout the investigation, and the scope of the investigation was not unlawfully expanded by the inclusion of Plaintiff.31 C Coinbra-Frutesp Could Lawfully be Subject to the New Investigation Because it was Revoked from the Old Order Plaintiff argues that Commerce’s investigation was unla wfully commence d upon revoked produce rs and exporters be cause pr oducers that are revoked from an order re

main cond

itionally subject to the order from which they have been revoked. Plaintiff’s Motion at 36-37. Plaintiff contends that the statutory sche me which imposes reinstatement of AD liability on r evoked producers that resume dumping subjects the revoke d producers to conditional liability for the life-span of the order. Id. (citing 19 U.S.C. § 1675(d); 19 C.F.R. § 351.222(b)(2)(i)(B))

. Here, Commerce’ s new inve stigation covere d an expanded clas s of goo ds, namel y FCOJM and NFC. The statute to which Plaintiff refers merely authorizes the revocation of a specific producer from an AD orde r but does not preclude Commerce from initiating a new investigation where dumping is alleged in a n expanded class of goods. Plaintiff contends that “incorporating into a new investigation merc handise that is already

subject to an antidumping duty order, a

lbeit revoked, is not a permissible remedial measure to determine whe ther there has been a r esump tion of sal es at l ess th an fair value .” Pl ainti ff’s M otio n at 37 (citi ng NTN Bearing , 13 CIT at 94). I

n opposition to Plaintiff’s analysis, Defendant-I ntervenors note that Commerce’s authority to reinstate re

voked producers under Asahi Chem. Indus. Co. v. United States , 13 CIT 987, 990, 727 F. Supp. 625 (1989) remains limited because the court found that “the r evocation determination of Commerce quashes the effect of an antidumping order, notwithstanding the langua ge in the regula tion imply

ing that the revoked orde

r may be reins tated.”

DefendantIntervenors’ Motion at 37. Furthermore, Plaintiff’s argument that in Sebacic Acid from the People’s Republic of China , Commerce concluded that a party that is conditionally revoked fr om32

an ord er is s till subj ect to the or der. P laint iff’s Moti on at 3 9 (cit ing Sebacic Acid From the People’s Republic of China: Preliminary Results of Chang ed Circumstances Review and I ntent To Reinstate the Antidumping Duty Or der , 69 Fed. Reg. 68,879 (November 26, 2004) (“ Sebacic Acid ”)). Plaintiff’s argument is not without merit, but fails to show that in the event that dumping of an expanded group of mercha ndise recurs, Commerce is compelled to proceed against the revoked producers by conducting a changed c ircumstances review and reinstating a n old order, as opposed to launching a new investig ation. Here, Commerce acted rea sonably by initiating a new investigation. Plaintiff was not procedurally disadvantaged by

a new proceeding in lieu of a

reinstat ement pr oceedin g beca use Commer

ce as pa rt of a ne w investig ation is require d to make a

n affirmative inju

ry determination and

impose a more liber

al de minimis margin standard. See Defend ant-I nterven ors’ Motion at 39. Furthermore, whe reas Commerce in Sebacic Acid experienced a short time between the revoca tion of the order and resumption of dumping, here, the old order went into effec t in 1987, leaving an extended gap between

revoca tions and r

esumption

of dumping

activity . Producti on, marke t and mone

tary condition s changed during that time and NF C, a new product, was added to the market since the old orde r was put in place. As a result, reinstatement would not have adequa tely provided for the

changes in market conditions. In Sebacic Acid , however, Commerce reasonably subjected only one producer to reexamination and reinstated that producer be cause extensive dumping was occurring through a single exporter that was distorting the mar ket. Here, almost all producers were revoked from the old order and absent any statutory barrie

rs to launching a new expanded investigation, Commerce reasonably exercised its discretion in initiating an investigation including revoked and excluded producers.33 V Conclusion For the foregoing r

easons, Commerce’s final determination in Notice of Final Determination of Sales at Less Than F air Value and Affirmative Final Dete rmination of Critical Circumsta

nces: Cer tain Ora nge Juice from Br azil , 71 Fed. Reg. 2,1 83 (Januar y 13 , 2006) is affirmed.

___/s/ Evan J. Wallach___ Evan J . Wal lach, Judge

Dated: June 19, 2007 New York, New YorkUNI TED STATES COURT OF I NTERNATI ONAL

TRADE

____________________________________ : L OUI S DREYFUS CI TRUS I NC., :

: Plaintiff, : : Be fo re : W ALL AC H, J u d ge v. : Court No.: 06-00122 : UN I TE D ST AT ES, : : De fe nd ant, : and : : FL ORI DA CI TRUS MUTUAL et al., :

: De fe nd ant- I nte rv e no rs . : ____________________________________:

ORDER AND JUDGMENT This case having come be fore the cour t upon the Rule 56.2 Motion for J udg ment Upon the Ag ency

Record f iled by L ouis Drey fus Citrus I nc. (“ Plaintiff’s Motion”); the cour t having revie wed a ll pleading s and pape rs on file he rein, having he ard or al ar g ument by eac h party , and a ft e r d ue de lib e ratio n, havin g re a c he d a de c isi on he re in; no w, in c on fo rm ity wi th s a id d e c isi on , it is hereby ORDE RED AD JUDG ED AN D D ECR EE D that Pla int if fs ’ M oti on

is D EN I ED ; and

it i s further ORDERED ADJUDGED AND DECREED that the dec ision of the U.S. Depar tment of Commerce ( “Commerce ”) in Notice of F inal Deter mination of Sales at L ess Than F air Va lue and Affir mative Fina l Deter

mination of Critical Circumstances: Cer tain Ora ng e Jui ce f

rom Br azil, 71 Fe d. Reg . 2,183 (January

13, 2006) is here by

SUSTAI NED; and it is furtherORDERED that all par ties shall reviewthe cour

t’s Opinion in this matter a nd notify the court in writing on or bef ore Tue sday , J une 26, 2007. whe ther a ny information containe d in the Op ini on is c on fi de nti a l, i de nti fy

any su c h in fo rm a tio n, and

re qu e st i ts d e le tio n f

ro m th e pu

bli c version of the Opinion to be issued there afte r. The pa rties shall sug g est alternative lang uag e for any portions they

wish deleted. I f a pa

rty deter mines that no information nee ds to be delete d, that party shall so notify

the cour t in writing on or be fore J une 26, 2007.

_/s/ Evan J . Wallach_______ E v an J

. W al l ac h , J u d ge Dated: J une 19, 2007 New Y ork, Ne w York